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Thursday, November 1, 2012

Does Section 66A of the Information Technology Act apply to Tweets?

Yesterday, one of our
commentators brought to my attention the arrest
of a businessman from Pondicherry, Mr.S.Ravi, for purportedly “offensive”
tweets against the Union Home Minister, Mr.P.Chidambaram’s son, Mr.Karti
Chidambaram. Section 66A of the Information Technology Act appears to have been
invoked against Mr.Ravi.

In an earlier
post, I had discussed in detail the scope of applicability of the provision
drawing a distinction between “publication”, and “sending messages” through a
communication device or a computer resource. The relevant portions of the post
are as follows:

“66A.Punishment for sending
offensive messages through communication service, etc.: Any person who
sends, by means of a computer resource or a communication device,-

(a) any information that is grossly
offensive or has menacing character; or

(b) any information which he knows to be
false, but for the purpose of causing annoyance, inconvenience, danger,
obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will,
persistently by making use of such computer resource or a communication device,

(c) any electronic mail or electronic mail
message for the purpose of causing annoyance or inconvenience or to deceive or
to mislead the addressee or recipient about the origin of such messages,shall be punishable with
imprisonment for a term which may extend to three years and with fine.

'Explanation.- For the purpose of this
Section, terms "electronic mail" and "electronic mail
message" means a message or information created or transmitted or received
on a computer, computer system, computer resource or communication device
including attachments in text, images, audio, video and any other electronic
record, which may be transmitted with the message.

The issue is whether the
provision applies to publication of defamatory or prohibited content on
websites. I am inclined to say no for the following reasons:

1. I do
not think publishing information on a website/portal falls within the
definition of "sending". According to me, the provision's use of the
word "send" along with "communications device" leaves very
little room to include "publication".

2. It must
be borne that although publication results in communication, there is no
attempt on the part of the legislature to include publication within the
meaning of "sending".

3.Legislations are expected and presumed
to be consistent in their use of terms. When the Act uses
"publication" in one sense in select provisions (Section 67), but
does not use "publication" inSection
66A, it means it does not intend to include mere publication by posting. In
other words, although "sending" may result in publication, all
publication cannot be equated to sending.

4.
"Send" envisages a specific recipient(s). Also the provisionrefers to transmission and
addressee/recipient of the message. This means the nature of the transmission
is communicatory.

5. Also,
it would be a stretch to argue that "communication/send" includes
communication between the person who publishes the information and the system
on which the information is published. That would amount to hair-splitting.

6.
Further, even when the provision refers to use of computer resource, the
legislature still makes no room for "publication" using the computer
resource on a website.

7. The
limited circumstance when publication on website would amount to
"send" is when information published on the portal is
"sent" and "received" by subscribers of the
site/blog/social networking site.Simply
put, we'll have to distinguish between publication simpliciter on a website/an
update on Twitter or Facebook and a message which is communicated.

8. Not
just that, there's a reason why the IT Act or Section 66Adoes not provide for defamation by
publication on a site. Section 499 of the IPC is broad enough to
apply to defamation using any medium, therefore one does not need any provision
under the IT Act for it. This applies to obscenity and the like offences as
well.

9.
Consequently, since the IPC already provides an offence for the end product of
the communication i.e. defamation, my take is that Section
66A forbids use of the
medium recognized under the IT Act as a medium for
defamation. Specifically, it forbids use of the medium as a "conduit"
for sending offensive messages. We must distinguish between a
"conduit" and a "place/cyberspace". Section
66A alludes to the use of information technology as a channel of
communication, as opposed to a space for publication.

10. The
equivalent provision in the “real world” is Section 20 of the Indian Post
Office Act, 1898, which reads as follows:

(a) any indecent or obscene printing, painting,
photograph, lithograph, engraving, book or card, or any other indecent
or obscene article, or

(b) any postal article having thereon, or on the
cover thereof, any words, marks or designs of an indecent, obscene,
seditious, scurrilous, threatening or grossly offensive character.

The
emphasis in the Post Office Act is on "transmission by post" of
anything forbidden. Therefore, it follows that evenSection66A, which is the
“e-equivalent” of Section 20 of the Post Office Act, alsofrowns
upon use of the medium as a "communication medium", and not as a
means of "simple publication."

As regards the application of
Section 66A to tweets, to my mind, Twitter as a micro-blogging site is a
platform for communication through publication, as opposed to communication by “sending
messages”.

It must be borne that the purpose
of the provision is to deter and frown upon messages sent via emails/SMS, which
though amount to communication, do not necessarily translate to publication
always (unless it is a group message). Even when offensive or insulting
information is sent as a group message via emails or group texts, the provision’s
scope is limited to the act of “sending messages”, with the issue of defamation
being covered by Section 499 of the Indian Penal Code.

4 comments:

Is the message recipient being protected against harassment ? If so both making comments in a publication vs directly sending message to the person would be harassment. Why then is there a distinction between the two?

2. As you say, even if 66A is not applicable in this case, someone had to be bailed out for this incorrect or mischievous application of the provision. What protects citizens from this?

Dear Mandar,The intention behind this provision is essentially to prevent harassment via msgs, as opposed to addressing defamation. True, defamation too is a kind of harassment, however, the legislature appears to have drawn a distinction between the two. As to why it has chosen to draw such a distinction is a matter of legislative policy.

The only thing that protects common citizens is awareness of the law, which is a deterrent against mischievous application of the law. More importantly, what would be a better deterrent is to take an active interest in law-making and contributing to it as and when comments are sought from members of the public.

I am a bit uncomfortable with your suggestion that '"send" along with "communications device" leaves very little room to include "publication"'. i think the legislature does equate sending to publication- IMHO.

I think S. 66A may be applicable to cases such as tweets. The reason i say so is that in my understanding the purport of "send" is not merely using a medium of communique, but is in fact the communication itself. What is the Editorial of a Newspaper for? to communicate the views to public at large.. The fact that such modicum is now electronic restricted to 140 characters does not take away the onus of the sender-publisher to take "due care". Similarly with the culture of e-books penetrating wouldn't the same be applicable..

I agree that S. 499 of the IPC is extremely broad to cover defamation across all forms of media or communication, however, in a case like this i would think that one would make a case u/S. 66A.

Dear Anon,Thanks for your comment, but I still do not see sufficient substantiation in your comment to support your stance. Please elaborate on why the act of "sending" is the same as the act of "publication". This elaboration is all the more necessary when the concept of publication is not alien to the IT Act and yet the legislature chose not to include it under Section 66A. A trained practitioner of the law is expected to have due regard to the choice of words used in a provision, instead of approaching it with a pre-conceived notion which ignores the nuances of statutory interpretation. If you could rationalize and explain your thoughts better, I might be in a better position to understand, and even agree with you.